U.S. $8,750,000.00
LOAN AGREEMENT
Dated as of October 21, 1993
between
EL CONQUISTADOR PARTNERSHIP L.P.
as Borrower
and
GENERAL ELECTRIC CAPITAL
CORPORATION OF PUERTO RICO
as Lender
TABLE OF CONTENTS
Page
----
1. Definitions.................................................... 1
2. Purpose of Loans............................................... 3
3. Loans.......................................................... 4
4. Prepayment..................................................... 4
5. Security....................................................... 5
6. Representations and Warranties................................. 6
7. Conditions of Lending.......................................... 9
8. Affirmative Covenants.......................................... 11
9. Negative Covenants............................................. 12
10. Events of Default.............................................. 13
11. Miscellaneous.................................................. 15
(i)
LOAN AGREEMENT
AGREEMENT entered into as of this 21st day of October, 1993, by the
following parties:
A. GENERAL ELECTRIC CAPITAL CORPORATION OF PUERTO RICO, a Delaware
corporation (hereinafter referred to as "GECCPR"), and
B. EL CONQUISTADOR PARTNERSHIP L.P., a Delaware limited partnership
(hereinafter referred to as the "Borrower").
This Agreement covers the terms and conditions upon which GECCPR will make
a Loan or Loans to the Borrower. Such terms and conditions are the following:
1. Definitions.
1.1. "Eligible Activities" shall have the meaning given to
such term in Regulation 3582.
1.2. "Guarantors" shall mean Williams Hospitality Management
Corporation and Kumagai International USA Corporation.
1.3. "Initial Loans" shall mean the Loans and advances which
are being made by GECCPR to the Borrower concurrently with the execution of this
Agreement.
1.4. "Loan Documents" shall mean this Agreement, the Notes,
the security documents described in Section 5 hereof and all other agreements,
instruments, documents and certificates now or hereafter executed in connection
with this Agreement, as they may respectively be modified, amended, extended or
supplemented from time to time.
1.5. "Loan" or "Loans" shall mean the Prior Loans, the Initial
Loans, and all subsequent loans that will be made to the Borrower pursuant to
Section 3 hereof.
1.6. "936 Funds" shall mean Eligible Funds as that term is
defined in Regulation 3582.
1.7. "Note" or "Notes" shall mean the Prior Notes and the
promissory notes of the Borrower, substantially in the form of Exhibit A hereto,
evidencing the indebtedness resulting from the making of the Loan or Loans and
delivered to GECCPR pursuant to Section 3.2 hereof, as such promissory notes may
be modified, amended, extended or supplemented from time to time, and any
promissory note or notes issued in exchange or replacement therefor.
1.8. "Obligations" shall mean all loans, advances, debts,
liabilities, and obligations (including without limitation, all interest,
charges, expenses, attorneys' fees and other sum chargeable to the Borrower) for
monetary amounts (whether or not such amounts are liquidated or determinable)
owing by the Borrower to GECCPR pursuant to or in connection with the Loan
Documents, and all covenants and duties regarding such amounts (of any kind or
nature, present or future, whether or not evidenced by any note, agreement or
other instrument) arising under or in connection with any of the Loan Documents.
1.9. "Personal Property Mortgages" shall mean the personal
property mortgages referred to in Section 5.1.1. hereof.
1.10. "Prior Loans" shall mean all other loans and advances
made by GECCPR to the Borrower on December 9, 1992, March 11, 1993, August 20,
1993, and September 7, 1993.
1.11. "Prior Notes" shall mean the promissory notes evidencing
the Prior Loans, namely, notes made on (i) December 9, 1992 in the principal
amount of $256,024.00, (ii) March 11, 1993 in the principal amount of
$233,454.50, (iii) August 20, 1993 in the
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principal amount of $361,442.00, and (iv) September 7, 1993 in the principal
amount of $289,360.00, as said promissory notes may be modified, amended,
extended or supplemented from time to time, and any promissory notes issued in
exchange or replacement therefor.
1.12. "Regulation 3582" shall refer to Regulation Number 3582
issued by the Commissioner of Financial Institutions of the Commonwealth of
Puerto Rico on January 29, 1988, as amended, or any substitute regulations
therefor.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine or the neuter. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, including any exhibits and schedules hereto, as the same may from time to
time be modified, extended, amended or supplemented, and not to any particular
section, subsection or clause contained in this Agreement.
2. Purpose of Loans.
GECCPR has made the Prior Loans, and will concurrently with
the execution hereof and, subject to the conditions precedent set forth herein
being met, in the future make loans to the Borrower up to the aggregate
principal amount of $8,750,000.00 to finance the acquisition of certain
furniture, fixtures, machinery, and equipment to be used by the Borrower in the
operation of El Conquistador Resort and Country Club located in Fajardo, Puerto
Rico. The Loans made by GECCPR to the Borrower will be made with 936 Funds.
3
3. Loans.
3.1. Subject to the terms and conditions and relying upon the
representations and warranties contained herein, GECCPR agrees on or prior to
December 15, 1993 to make a Loan or Loans to the Borrower up to an aggregate
principal amount of $8,750,000.00, $1,114,297.16 of which sum represents the
unpaid principal amount of the Prior Notes.
3.2. Each Loan from GECCPR to the Borrower shall be evidenced
by a Note. The Notes shall be payable in sixty (60) equal consecutive monthly
installments of principal and interest, with commencement and maturity dates as
more fully set forth therein. The Notes shall bear interest from and after this
date until full payment on the unpaid balance of principal thereof (calculated
on the basis of a 360-day year of twelve 30-day months) at a fixed annual rate
equal to nine percent (9%).
4. Prepayment.
At its option the Borrower may at any time voluntarily prepay
in full, but not in part, its entire indebtedness under all of the Notes, plus
all other sums due hereunder and under the other Loan Documents, upon at least
five days' written or telegraphic notice to GECCPR specifying the date of the
proposed prepayment and the amount thereof. In the event of prepayment, the
Borrower will pay to GECCPR an additional sum as a premium equal to the
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following percentages of the outstanding principal balance of the Loans at the
time of payment for the indicated periods:
================================================================================
If Prepayment is made prior to: Prepayment Premium:
- --------------------------------------------------------------------------------
First anniversary 5%
- --------------------------------------------------------------------------------
Second anniversary 4%
- --------------------------------------------------------------------------------
Third anniversary 3%
- --------------------------------------------------------------------------------
Fourth anniversary 2%
- --------------------------------------------------------------------------------
Fifth anniversary 1%
================================================================================
5. Security.
5.1. As security for the Notes the Borrower shall deliver to
GECCPR the following:
5.1.1. personal property mortgages in form and substance
acceptable to GECCPR and executed by the Borrower and Williams Hospitality
Management Corporation, as the case may be, creating a continuing first priority
security interest in favor of GECCPR covering the furniture, fixtures, machinery
and equipment, including motor vehicles, financed pursuant to this Agreement;
5.1.2. guaranty agreements, in form and substance
acceptable to GECCPR, executed by the authorized officers of the Guarantors,
pursuant to which each Guarantor guarantees the obligation of the Borrower in
the lesser amount of either $4,106,800.00 or fifty percent (50%) of the
outstanding principal of and interest on the Loans; and
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5.1.3. an irrevocable stand-by letter of credit for
$3,423,006.00 issued by the Bank of Nova Scotia, the Government Development Bank
for Puerto Rico or any other bank acceptable to GECCPR.
5.2. Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon the indefeasible payment in full of the
Obligations, whether by payment by the Borrower, application of a draw on the
letter of credit by GECCPR or payment by either or both of the Guarantors
pursuant to their respective guaranties, or a combination thereof, GECCPR shall
release any and all interest it may have in the personal property, the Personal
Property Mortgages, any guaranties or any other collateral securing the
Obligations hereunder.
6. Representations and Warranties.
6.1. The Borrower represents and warrants that:
6.1.1. It is a limited partnership duly organized and
existing and in good standing under the laws of the State of Delaware; that is
duly authorized to do business in Puerto Rico and is engaged in business
therein; that it will continue to be, duly licensed or qualified in all
jurisdictions in which the character of the property owned or leased or the
nature of the business transacted by it makes licensing or qualification
necessary; that it has all requisite power to own its properties and to carry on
its business as now conducted and carried on, and to enter into and perform its
obligations under the Loan Documents;
6.1.2. The Borrower has the requisite power and
authority and the legal right to pledge, mortgage or otherwise encumber and
operate its properties, and is in compliance with its partnership agreement;
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6.1.3. It has power and authority to execute, deliver
and carry out this Agreement, and the other Loan Documents to be executed by the
Borrower; that each of said documents and instruments has been duly authorized
by all necessary partnership action, which action is in full force and effect;
and that this Agreement, and the other Loan Documents, when issued, will be
valid and enforceable in accordance with their respective terms;
6.1.4. There are no suits, proceedings, inquiries or
investigations, at law or in equity, pending or, so far as the Borrower knows
after due inquiry, threatened against the Borrower or any of the Guarantors
before any court, administrative body or governmental agency which will
materially or adversely affect the financial condition of the Borrower;
6.1.5. The Borrower possesses all licenses, rights,
permits, consents or approvals from all governmental authorities having
jurisdiction necessary for the conduct of its business as now conducted, without
substantial known conflict with the rights of others. The Borrower will obtain,
maintain, preserve, and renew all said licenses, rights, permits, consents, or
approvals as are necessary to own and operate a first class resort hotel and
country club in Puerto Rico;
6.1.6. The financial statements of the Borrower dated as
of March 31, 1993 heretofore furnished to GECCPR, correctly set forth the
financial condition of the Borrower, as of such date, and the result of its
operations for the period then ended; and there has been no material adverse
change in the financial condition of the Borrower since the date of such
statements;
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6.1.7. The proceeds of the Loan or Loans to be made by
GECCPR to the Borrower hereunder shall be used for business activities in Puerto
Rico and only for the purposes which are Eligible Activities, all as more fully
set forth in Section 2 hereof;
6.1.8. The current location of the offices and principal
place of business of the Borrower is Road 987, Las Croabas, Fajardo, Puerto Rico
00738;
6.1.9. No information contained in this Agreement, the
financial information of the Borrower or any written statement furnished by the
Borrower pursuant to the terms of this Agreement or the terms of the other Loan
Documents required of the Borrower for use in connection with the transactions
contemplated by this Agreement, which have previously been delivered to GECCPR,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained herein or therein not misleading
in light of the circumstances under which such statements were made;
6.1.10. The liens granted to GECCPR pursuant to Section
5 of this Agreement will, on the date granted, be fully perfected first priority
liens in and to the collateral described therein;
6.1.11. Except for the consent of the Government
Development Bank for Puerto Rico, which consent is given pursuant to that
certain Mortgagee Estoppel, Consent and Subordination Agreement dated October
21, 1993, no other authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of the Agreement, or
the other Loan Documents required of the Borrower; and
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6.1.12. The Borrower will not use the loan proceeds for
activities or in a manner that would violate Regulation 3582.
7. Conditions of Lending.
7.1. The obligation of GECCPR to make the Initial Loans are
subject to the performance by the Borrower of the agreements to be performed
hereunder on or before the date of making such Initial Loans and to the
satisfaction of the following conditions, as well as to the Borrower's
compliance on the date hereof with said agreements and conditions with respect
to the Prior Loans:
7.1.1. GECCPR shall have received, prior to or at the
time of the making of the Initial Loans hereunder, an opinion dated the date
hereof in the form attached hereto as Exhibit B, from the law firm of Shack &
Siegel, P.C.;
7.1.2. GECCPR shall have received, prior to or at the
time of the making of the Initial Loans hereunder, the Notes and all of the Loan
Documents referred to in Section 5 hereof, and if such document shall be
executed by persons other than the Borrower, GECCPR shall have received evidence
satisfactory to it of the authority of such persons to execute such instruments;
7.1.3. GECCPR shall have received, prior to or at the
time of the making of the Initial Loans hereunder, a Mortgagee Estoppel, Consent
and Subordination Agreement signed by The Mitsubishi Bank, Limited and the
Government Development Bank for Puerto Rico, in form and substance satisfactory
to GECCPR and its legal counsel;
7.1.4. GECCPR shall have received, prior to or at the
time of the making of the Initial Loans hereunder, certified copies of all
partnership action taken by the
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Borrower to authorize the execution and delivery of the Loan Documents and any
other documents or instruments to be delivered by the Borrower hereunder, and
such other papers as GECCPR or its counsel may reasonably request;
7.1.5. GECCPR shall have received, prior to or at the
time of the making of the Initial Loans hereunder, a certificate of the
authorized signatory of the Borrower certifying the names and true signatures of
the officers of the Borrower authorized to sign this Agreement, and the other
Loan Documents; and
7.1.6. All legal details and proceedings in connection
with the transactions contemplated by this Agreement shall be in form and
substance satisfactory to GECCPR's legal counsel, Messrs. McConnell Valdes.
7.2. The obligation of GECCPR to make each Loan hereunder
(including the Initial Loans) shall be subject to the further conditions
precedent that:
7.2.1. On the date of such Loans the following
statements shall be true (and both the giving of the applicable notice
requesting such Loans and the acceptance by the Borrower of the proceeds of such
Loans shall constitute a representation and warranty by the Borrower that on the
date of such Loans such statements are true);
7.2.1.1. The representations and warranties
contained in this Agreement are correct on and as of the date of such Loans,
before and after giving effect to such Loans and to the application of the
proceeds therefrom; and
7.2.1.2. No event has occurred and is continuing,
or would result from such Loans or from the application of the proceeds
therefrom, which
10
constitutes an event of default under Section 10.1 hereof or would constitute an
event of default but for the requirement that notice be given or time elapse or
both.
7.2.2. If the Loan is other than the Initial Loans,
GECCPR shall have received, prior to or at the time of the making of such Loan,
a Note and a Personal Property Mortgage; and
7.2.3. GECCPR shall have received such other approvals,
opinions or documents as GECCPR may reasonably request; and
7.2.4. GECCPR need not make any Loan hereunder which it
may not make lawfully under then existing conditions. 8. Affirmative Covenants.
8.1. The Borrower covenants that it will, until payment in
full of the Notes, and satisfaction of all other Obligations hereunder:
8.1.1. Apply the proceeds of the Loans made hereunder
for business activities in Puerto Rico and only for the purposes which are
Eligible Activities, all as more fully set forth in Section 2 hereof;
8.1.2. Maintain proper books of record and account, in
which complete entries will be made in accordance with generally accepted
accounting principles (GAAP) consistently applied, reflecting all financial
records of the Borrower, and cause such books to be audited at the end of each
fiscal year by Ernst & Young or such other independent public accountants of
recognized standing reasonably satisfactory to GECCPR;
8.1.3. Furnish to GECCPR within forty-five days after
the close of the first six (6) months of the Borrower's fiscal year, quarterly
balance sheets therefor and
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statements of profit and loss and surplus together with a certificate signed by
a responsible officer of the Borrower certifying that no event of default has
occurred under this Agreement, and that no fact or circumstance exists which,
with the lapse of time or the giving of notice or both, would result in an event
of default hereunder; furnish to GECCPR within ninety (90) days after the end of
each fiscal year of the Borrower a balance sheet and statement of profit and
loss and surplus of the Borrower for such fiscal year certified by Ernst & Young
or such other independent public accountants of recognized standing reasonably
satisfactory to GECCPR;
8.1.4. Permit any officers or qualified employees or
representatives of GECCPR designated by it to inspect any and all properties of
the Borrower secured pursuant to Section 5.1.1 hereof, and examine its books and
discuss its affairs, finances and accounts with the officers thereof, all at
such reasonable times and as often as GECCPR may reasonably request, at the sole
cost and expense of GECCPR, and GECCPR hereby recognizes that the properties so
secured are to be used in the operation of a first class resort hotel and
country club and such inspections will not interfere with such operations and/or
the guests using the facilities of the resort hotel and country club, except and
only to the extent necessary to undertake a reasonable inspection of said
property secured pursuant to Section 5.1.1 hereof; and
8.1.5. Maintain, preserve and renew all rights, powers,
privileges and franchises possessed by it insofar as in the bona fide opinion of
the Borrower's partners such rights, powers, privileges and franchises continue
to be advantageous to the Borrower.
9. Negative Covenants.
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9.1. The Borrower covenants that it will not, without the
prior written consent of GECCPR, until full payment of the Notes, and all of the
Borrower's other Obligations:
9.1.1. Liquidate, merge or consolidate with any other
corporation or partnership; nor
9.1.2. Engage in any business activity other than the
operation of a first class resort hotel and country club named El Conquistador
Resort and Country Club, or other activities which may be reasonably regarded as
necessary to the normal operation of such business activity.
10. Events of Default.
10.1. The following occurrences shall be considered events of
default hereunder:
10.1.1. Any representation or warranty herein made by
the Borrower, or any certificate or statement furnished pursuant to the
provisions of this Agreement by the Borrower or by any other person shall prove
to be false or misleading in any material respect, as of the time made; or
10.1.2. The Borrower shall default in the performance of
any covenant contained in Sections 8.1.1 or 9 hereof; or
10.1.3. The Borrower shall default in the performance of
any other covenant, condition or provision hereof, or in the performance of any
other obligation which may exist between the Borrower and GECCPR, whether now
existing or arising in the
13
future, and such default shall not be remedied within a period of thirty (30)
days after written notice thereof to the Borrower from GECCPR; or
10.1.4. The Borrower shall default in the payment of
principal or interest on the Notes when due, and such default shall not have
been remedied for a period of ten (10) calendar days thereafter; or
10.1.5. A default shall have occurred under any other
Loan Document beyond any applicable grace period; or
10.1.6. The Borrower becomes insolvent or unable to pay
its debts as they mature, or shall file a voluntary petition in bankruptcy, or a
voluntary petition seeking reorganization, or to effect a plan or other
arrangement with creditors, or upon the filing of any petition by or against the
Borrower under, or purporting to be under, any bankruptcy, reorganization or
insolvency law of any jurisdiction, or the Borrower shall be adjudged bankrupt
or insolvent by any court of competent jurisdiction, or shall make an assignment
for the benefit of creditors or to an agent authorized to liquidate any
substantial amount of its assets, or shall apply for, or consent to the
appointment of any receiver or trustee for it or for a substantial part of its
property; or
10.1.7. An order shall be entered pursuant to, or
purporting to be pursuant to, any bankruptcy, re-organization or insolvency law
of any jurisdiction, approving an involuntary petition seeking reorganization,
or to affect a plan or other arrangement with creditors of the Borrower, or
appointment any receiver or trustee for the Borrower or for a substantial part
of the property of the Borrower; or
14
10.1.8. The Borrower defaults in the payment of
principal or interest on any material obligation for borrowed money beyond any
period of grace provided with respect thereto, or in the performance or
observance of any other material agreement, term, or condition contained
therein, or in any material agreement or indenture under which such obligation
is created, if the effect of such default is to cause or permit the holder or
holders of such obligation (or a trustee on behalf of such holder) to cause such
obligation to become due prior to its stated maturity.
10.2. Upon the happening of any event of default described
under Sections 10.1.1, 10.1.2, 10.1.3, 10.1.4, or 10.1.5 if such default shall
not have been remedied, GECCPR shall be entitled, by written notice to the
Borrower, to declare the Notes to be forthwith due and payable, and the same
shall thereupon become due and payable without presentment, demand, protest or
any other notice of any kind, all of which hereby expressly waived.
10.3. If any event of default described in Sections 10.1.6,
10.1.7, or 10.1.8 shall occur, then the Notes and any interest accrued thereon
and all liability of the Borrower to GECCPR under the Loan Documents, shall
become forthwith due and payable without presentment, demand, protest or notice
of any kind, all of which are hereby expressly waived.
11. Miscellaneous.
11.1. No delay or failure of GECCPR, or of any holder of the
Notes in the exercise of any right, power or privilege hereunder, or under the
terms of the Notes or any of the other Loan Documents, shall affect such right,
power or privilege; nor shall any single
15
or partial exercise thereof, nor any event, abandonment or discontinuance of
steps to enforce such right, power or privilege, preclude any further exercise
thereof, or of any other right, power or privilege.
11.2. The rights and remedies of GECCPR hereunder are
cumulative and not exclusive of any right or remedy which it would otherwise
have.
11.3. Any waiver, permit, consent or approval of any kind or
character on the part of GECCPR of any breach or default under this Agreement,
or of any provision or condition of this Agreement, must be in writing and
executed by a duly authorized representative of GECCPR. Said waiver, permit,
consent or approval shall be effective only to the extent specifically set forth
in such writing, and shall not operate as a waiver, permit, consent or approval
of any future breach of default under this Agreement, or any provision or
condition hereof.
11.4. In the event of any default under this Agreement or
under any other Loan Document, Borrower agrees that if an action at law or suit
then arises, to pay in addition to all other sums which the Borrower may be
required to pay, a reasonable sum for attorneys' fees incurred by GECCPR in
connection therewith.
11.5. Nothing in this Agreement shall be deemed to constitute
a waiver or prohibition of GECCPR's right of set-off.
11.6. All representations, warranties, covenants and
agreements of the Borrower contained herein or otherwise in writing shall
survive the making of the Loans hereunder and the issuance of the Notes.
16
11.7. All communications, notices, consents, and waivers
provided for herein or given in connection herewith shall be in writing, shall
be transmitted by facsimile, mail, telex, or personal delivery (including
without limitation, air courier) and shall become effective when received,
addressed as follows: (i) if to the Borrower, at Road 987, Las Croabas, Fajardo,
Puerto Rico 00738 (fax no. 860-1144), Attention: Manuel Peredo, with a copy to
Shack & Siegel, P.C., 530 Fifth Avenue, New York, New York 10036 (fax no. (212)
730-1964), Attention: Pamela E. Flaherty, Esq.; and (ii) if to the Lender, at
General Electric Capital Corporation of Puerto Rico, 450 Ponce de Leon Avenue,
Torre de la Reina Building, First Floor, San Juan, Puerto Rico 00901 (fax no.
(809) 754-3135), Attention: Lucas Delgado, with a copy to McConnell Valdes, 270
Munoz Rivera Avenue, Hato Rey, Puerto Rico 00918, (fax no. (809) 759-8225),
Attention: Esteban F. Bird, Esq.; or such other addresses notified by the
parties from time to time.
11.8. The Borrower hereby agrees to pay and save GECCPR
harmless against liability for the payment of all reasonable out-of-pocket
expenses of GECCPR arising in connection with this transaction, including the
reasonable fees and expenses of counsel for GECCPR incurred in the preparation
of this Agreement and in the preparation and recording of any security document
issued in connection with this Agreement as the same are billed or covered by
statements from time to time; and the obligations of the Borrower under this
section shall survive the payment of the Notes.
11.9. To the extent that there is any conflict between the
provisions of this Agreement and the provisions of any of the other Loan
Documents, then this Agreement shall govern, except to the extent such conflict
relates to the granting or perfection of security
17
interests, realization upon collateral, or the enforcement of any remedy under
or in respect of such other Loan Documents in which case the provisions of such
other Loan Documents shall govern.
11.10. This Agreement is made pursuant to, and shall be
construed under, the laws of the Commonwealth of Puerto Rico, and it shall be
binding upon and shall inure to the benefit of the Borrower and GECCPR and their
respective successors and assigns; provided, however, that this Agreement shall
not be assigned by the Borrower without the prior written consent of GECCPR;
further provided, however, that should any assignment be made by GECCPR, the
Agreement may only be assigned collectively with the other Loan Documents to
which GECCPR is a party.
EL CONQUISTADOR PARTNERSHIP L.P.
KUMAGAI CARIBBEAN, INC.
(General Partner)
By: /s/_____________________________
Toru Fujita
President
WKA EL CON ASSOCIATES
(General Partner)
By: /s/_____________________________
Manuel Peredo
Authorized Signatory
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GENERAL ELECTRIC CAPITAL
CORPORATION OF PUERTO RICO
By: /s/_____________________________
Thomas R. Nido
President
Affidavit No. 014
Acknowledged and subscribed before me in San Juan, Puerto Rico this 21st
day of October, 1993, by the following persons who are personally known to me:
Toru Fujita and Manuel Peredo, of legal age, married and residents of San Juan,
Puerto Rico, in their capacity as President and Authorized Signatory,
respectively, of Kumagai Caribbean, Inc. and WKA El Con Associates, general
partners of El Conquistador Partnership L.P., and by Thomas R. Nido, of legal
age, single, and resident of San Juan, Puerto Rico, in his capacity as President
of General Electric Capital Corporation of Puerto Rico.
By: /s/_____________________________
Notary Public
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AMENDMENT TO LOAN AGREEMENT
AGREEMENT entered into on this 30th day of June, 1994, by the following
parties:
A. GENERAL ELECTRIC CAPITAL CORPORATION OF PUERTO RICO, a Delaware
corporation (hereinafter referred to as "GECCPR"); and
B. EL CONQUISTADOR PARTNERSHIP L.P., a Delaware limited partnership
(hereinafter referred to as the "Borrower").
WHEREAS, the Borrower and GECCPR entered into a Loan Agreement dated as of
October 21, 1993, (the "Loan Agreement"; all capitalized terms used herein which
are not otherwise defined herein shall have the meanings set forth in the Loan
Agreement);
WHEREAS, GECCPR has agreed to increase the amount available to the
Borrower under the Loan Agreement to allow the Borrower to purchase additional
furniture, fixtures, machinery, and equipment necessary in the operation of El
Conquistador Resort and Country Club;
NOW, THEREFORE, the Borrower and GECCPR have agreed to amend the Loan
Agreement as hereinafter set forth.
SECTION 1. Amendments to Loan Agreement. The Loan Agreement is, effective
as of the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 1.2 is hereby amended and restated to read as follows:
""Guarantors" shall mean Williams Hospitality Group Inc., previously
Williams Hospitality Management Corporation, and Kumagai International USA
Corporation."
(b) Section 2 is hereby amended and restated to read as follows:
"GECCPR has made the Prior Loans, and will concurrently with the execution
hereof and, subject to the conditions precedent set forth herein being
met, in the future make loans to the Borrower up to the aggregate
principal amount of $8,583,000.17 to finance the acquisition of certain
furniture, fixtures, machinery, and equipment, including motor vehicles,
to be used by the Borrower in the operation of El Conquistador Resort and
Country Club located in Fajardo, Puerto Rico. The Loans made by GECCPR to
the Borrower will be made with 936 Funds."
(c) Sections 3.1 and 3.2 are hereby amended and restated to read as
follows:
"3.1. Subject to the terms and conditions and relying upon the
representations and warranties contained herein, GECCPR agrees on or prior
to June 30, 1994 to make a Loan or Loans to the Borrower up to an
aggregate principal amount of $8,583,000.17, $7,811,000.17 of which sum
represents the unpaid principal amount of Loans made to the Borrower on or
prior to December 15, 1993."
3.2 Each Loan made by GECCPR to the Borrower on or prior to December 15,
1993, shall be evidenced by a Note which shall be payable in sixty (60)
equal consecutive monthly installments of principal and interest, with
commencement and maturity dates as more fully set forth therein. Each Loan
made by GECCPR to the Borrower after said date but on or prior to June 30,
1994 shall be evidenced by a Note which shall be payable in fifty-one (51)
equal consecutive monthly installments of principal and interest, with
commencement and maturity dates as more fully set forth therein. The Notes
shall bear interest from their respective dates until full payment on the
unpaid balance thereof (calculated on the basis of a 360-day year of
twelve 30-day moths) if executed prior to December 15, 1993, at a fixed
annual rate equal to nine percent (9%), and if executed after such date
but on or prior to June 30, 1994, at a fixed annual rate equal to nine
percent (9%)."
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, GECCPR shall have received all of the following
documents, each document (unless otherwise indicated) being dated the date
hereof, in form and substance satisfactory to GECCPR:
(a) An option dated the date hereof in the form attached hereto as Exhibit
A, from the law firm of Shack & Siegel, P.C.;
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(b) Promissory notes, substantially in the form of Exhibit B hereto,
evidencing the additional indebtedness resulting from the increased loan amount
being made available to the Borrower pursuant to this Amendment;
(c) Personal property mortgages in form and substance acceptable to GECCPR
and executed by the Borrower, or Williams Hospitality Group, Inc., previously
Williams Hospitality Management Corporation, as the case may be, creating a
continuing first priority security interest in favor of GECCPR covering the
additional furniture, fixtures, machinery, and equipment, including motor
vehicles, financed pursuant to this Amendment;
(d) Letters of consent from each of the Guarantors acknowledging and
consenting to this Amendment and the extension of the guarantees up to 50% of
the additional loan provided hereby;
(e) A letter of amendment signed by The Mitsubishi Bank, Limited, and the
Government Development Bank for Puerto Rico, in form and substance satisfactory
to GECCPR and its legal counsel, amending the Mortgagee Estoppel, Consent and
Subordination Agreement executed by said parties pursuant to the Loan Agreement;
(f) Certified copies of all partnership action taken by the Borrower to
authorize the execution and delivery of this Amendment and any other documents
or instruments to be delivered by Borrower hereunder;
(g) Certified copies of all corporate action taken by the Guarantors and
the corporate partners of the Borrower to authorize the execution and delivery
of this Amendment and any other documents or instruments to be delivered to
GECCPR hereunder;
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(h) A certification from an authorized signatory of the Borrower, the
Guarantors, and the Borrower's corporate partners as the case may be, certifying
the names and true signatures of the officers authorized to sign this Amendment
and any other documents or instruments to be delivered to GECCPR pursuant
hereto; and
(i) A certificate signed by a duly authorized officer of the Borrower
stating that the representations and warranties made by the Borrower in the Loan
Agreement are true, accurate, and complete as of the date of this Amendment.
SECTION 3. Reference to and Effect on the Loan Documents.
Upon the effectiveness of Sections 1 and 2 hereof, on and after the date
hereof each reference in the Loan Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Loan Agreement, and each
reference in the other Loan Documents to "the Loan Agreement", "thereunder",
"thereof" or words of like import referring to the Loan Agreement, shall mean
and be a reference to the Loan Agreement as amended hereby.
SECTION 4. Waiver. The execution, delivery and effectiveness of this
Amendment shall not, except to the extent expressly provided herein, operate as
a waiver of any right, power or remedy of GECCPR under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. No Novation. This Amendment shall not in any way constitute a
novation of the Obligations. Except as specifically amended hereby, the Loan
Agreement shall remain in full force and effect.
SECTION 6. Costs, Expenses and Taxes. The Borrower hereby agrees to pay
and save GECCPR harmless against liability for the payment of all reasonable
out-of-pocket expenses
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of GECCPR arising in connection with this transaction, including the reasonable
fees and expenses of counsel for GECCPR incurred in the preparation of this
Amendment and in preparation and recording of any security document issued in
connection with this Amendment as the same are billed or covered by statements
from time to time; and the obligations of the Borrower under this section shall
survive the payment of the Notes.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Puerto Rico.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
EL CONQUISTADOR PARTNERSHIP L.P.
KUMAGAI CARIBBEAN, INC.
(General Partner)
By: /s/__________________________________
Toru Fujita
President
WKA EL CON ASSOCIATES
(General Partner)
By: /s/__________________________________
Manuel Peredo
Authorized Signatory
Address:
Road 987 Las Croabas
Fajardo, Puerto Rico 00738
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GENERAL ELECTRIC CAPITAL
CORPORATION OF PUERTO RICO
By: /s/__________________________________
Lucas Delgado
Vice President
Address:
450 Ponce de Leon Ave.
Torre de la Reina Bldg.
First Floor
San Juan, PR 00901
Affidavit No. 098
Acknowledged and subscribed before me in San Juan, Puerto Rico, this 30th
day of June, 1994, by the following persons who are personally known to me: Toru
Fujita and Manuel Peredo, of legal age, married and residents of San Juan,
Puerto Rico, in their capacity as President and Authorized Signatory,
respectively, of Kumagai Caribbean, Inc. and WKA El Con Associates, general
partners of El Conquistador Partnership L.P. and by Lucas Delgado, of legal age,
married, and resident of San Juan, Puerto Rico, in his capacity as Vice
President of General Electric Capital Corporation of Puerto Rico.
By: /s/__________________________________
Notary Public
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